Audio Books v. Audio Summaries: Delhi HC and Copyright Implications

[This post has been co-authored with Lokesh Vyas]

As reported on Entrackr, Pocket FM has filed a copyright infringement case against Kuku FM before the Delhi High Court. Pocket FM alleges that Kuku FM has violated its copyright by providing audio summaries of books to which Pocket FM has exclusive rights to create audiobooks.

The matter is still being heard. While pleadings are not uploaded online by the Delhi High Court, Entrackr has obtained copies of the pleadings and has discussed some of the key facts and arguments here.

Briefly, the audiobooks and the audio summaries involved in this dispute are translated Hindi versions of popular English books such as Rich Dad, Poor Dad, Think Like a Monk etc. Pocket FM claims to have an exclusive license from Manjul Publishing House, the publisher of translated titles, that holds the Hindi rights to these books. We are not aware of the exact terms of this contract and the specific rights licensed to Pocket FM.

The nature of rights granted to Pocket FM for creating its audio-books becomes relevant to examine in the first instance. There are two free-standing works involved i.e. the underlying written book and the sound recording of the book. Pocket FM should first be able to establish that it has exclusive rights to create not only full length audio-books but also audio summaries. As reported on Entrackr, Pocket FM claims to have ‘audio rights’ to these books and is arguing that Kuku FM has violated its adaptation and abridgement rights.

As per the Copyright Act, the right to make an ‘adaptation’ of a book (‘literary work’) is one of the exclusive rights of a copyright owner.  The Copyright Act defines adaptation as (i) “in relation to a literary … work, any abridgement of the work or any version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical.” The term ‘abridgement’ is not separately defined. It can be argued that ‘abridgement’ only happens from one literary work to another literary format –  another book, or a newspaper, magazine, periodical etc. This clause and therefore abridgement does not directly fit into what Pocket FM is doing (disseminating audiobooks). However, Pocket FM may still have the right to create an abridged literary version of the book, record the abridged version and then communicate the recorded version to the public.

Adaptation is also defined to mean “in relation to any work, any use of such work involving its rearrangement or alteration”. Many movies have been ‘adapted’ from books or plays and adaptations are generally understood to mean a change in format of a work e.g. a literary work to a cinematograph film. Pocket FM may have been granted the exclusive rights to adapt books to audio formats.

While the idea of adapting books for creating audio-books or audio summaries is a valuable commercial idea, copyright law protects expressions of creative ideas rather than (commercial) ideas. For a full-length audiobook, this commercial idea is given creative expression only by following the narration, story-line and facts as presented in the book.The audio-book therefore expresses the work in the same way as the written book. Only the medium of expression changes. In this way, a full-length audiobook is an adaptation of the book since the expressive aspects of both the works are largely the same.

When it comes to audio-summaries, however, things get a little complicated. Audio-summaries involve a change in format from literary work to sound recording and summaries are essentially condensed versions of the source work (rearrangements / alterations). Seen this way, it is possible that audio-summaries could qualify as adaptations and therefore require permission from copyright holders. However, summaries may be original works in and of themselves, involving independent thought and expression. These are questions of facts and degrees and will depend on the amount of the source work that has been taken and the manner in which summaries have been created / expressed.

If it can be shown that the summaries are more like ‘abstracts’ that are short and convey essential ideas rather than expressions, it is more likely that the summaries will be non-infringing. Typically, abstracts are short, convey essential ideas, involve skill and effort to create, do not supplant the source work, and draw attention to and promote the source work’s use / purchase. However, if the summaries are lengthy and mechanical ‘cut and paste’ jobs, it is unlikely that they will be protected.

Apart from idea-expression arguments, it remains to be seen whether audio-summaries can fall within any of the Section 52 fair use provisions. One provision of relevance is Section 52(1)(a) that permits ‘fair dealing’ with any work for the purpose of, among other things, review of that work. In the past, courts have held that guidebooks, which are books that explain the source work, amount ‘review’ under Section 52. However, the nature and creation of guidebooks require a degree of critical thinking and analysis which may be absent in creating a summary.

On a more basic level, it could be argued that dissemination of summaries fulfils a larger public policy goal of diffusion of knowledge. Layered on to this is the fact that the summaries are translated versions of English books which further substantiates the access to knowledge argument. Summaries also assist users by compressing large works which make them more convenient for consumption. However, whether or not these are ‘fair dealings’ will depend on other factors such as amount of the original work used, the nature of the books (fiction / non-fiction), the purpose of the summaries (educational, commercial / non-commercial), whether summaries substitute the original books / audio-books or complement them (e.g. by providing links to the full-length audio-books).

At the same time, should we be cautious of slipping into a ‘snippet’ culture for books? Learnings from the news industry, the creation and dissemination of news snippets by news aggregators, should be considered to understand the larger ramifications of a free-riding market for audio summaries.